In the course of her nomination for Solicitor General, Kagan filled out questionnaires on a variety of issues. While she bobbed and weaved on many issues, with standard invocations of the need to follow precedent and enforce presumptively valid statutes, on the issue of same-sex marriage Kagan was unequivocal.

In response to a question from Sen. John Cornyn (at page 28 of her Senate Judiciary Questionnaire), Kagan stated flat out that there was no constitutional right for same sex couples to marry (emphasis mine):

1. As Solicitor General, you would be charged with defending the Defense of Marriage Act. That law, as you may know, was enacted by overwhelming majorities of both houses of Congress (85-14 in the Senate and 342-67 in the House) in 1996 and signed into law by President Clinton.

a. Given your rhetoric about the Don’t Ask, Don’t Tell policy—you called it “a profound wrong—a moral injustice of the first order”—let me ask this basic question: Do you believe that there is a federal constitutional right to same-sex marriage?

Answer: There is no federal constitutional right to same-sex marriage.

b. Have you ever expressed your opinion whether the federal Constitution should be read to confer a right to same-sex marriage? If so, please provide details.

Answer: I do not recall ever expressing an opinion on this question.

This doesn't mean that Kagan opposes gay marriage. But she clearly believes it is a matter for the political process, not a constitutional right.

When Bill Clinton famously said "It depends on what the meaning of the word 'is' is," he had a point. He made a legalistic distinction between his statement and lying. That first sentence sounded so absurd that we barely listen to the next part, which was:

"If ... 'is' means is and never has been, that is not--that is one thing. If it means there is none, that was a completely true statement....Now, if someone had asked me on that day, are you having any kind of sexual relations with Ms. Lewinsky, that is, asked me a question in the present tense, I would have said no. And it would have been completely true."

So back to that Kagan questionnaire. The question was phrased in the present tense. At the time Kagan answered the question, the Supreme Court had not yet said there was such a right, so she could say there is no right, in a narrow sense.

Now, you might think that if a person is ever going to find a right in the Constitution, it must be that the right is already there. But that is a view of the Constitution that fits with a strong commitment to sticking to the original meaning of the text, and I don't think Kagan is on record or will ever be the sort of judge who says that constitutional rights are only what they were at the time the text was written. If the meaning of rights can grow or evolve or change over time, then one could say "There is no federal constitutional right to same-sex marriage" one day and, later, say that there is.

The path to finding a constitutional right to same-sex marriage is a very easy one at this point in the development of the case law. It is mainly a prudential, political attitude that will keep the Court from finding it now. Knowing the strength of popular opinion and fearing political retaliation against the judiciary, the Court might nevertheless say that there is no right to same-sex marriage. Indeed, there's some reason to think that Justice Kagan will refrain from seeing the right that is so easily visible up there on the path the case law has already opened up. As Justice Scalia wrote, dissenting in Lawrence v. Texas:

Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct....

One of the benefits of leaving regulation of this matter to the people rather than to the courts is that the people, unlike judges, need not carry things to their logical conclusion. The people may feel that their disapprobation of homosexual conduct is strong enough to disallow homosexual marriage, but not strong enough to criminalize private homosexual acts–and may legislate accordingly. The Court today pretends that it possesses a similar freedom of action... Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct... and if, as the Court coos (casting aside all pretense of neutrality), “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,” what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution”? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case “does not involve” the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so.

So maybe Elena Kagan will "pretend" — to use Justice Scalia's word — that she has the freedom to draw the kind of line that — as Justice Scalia insists — only legislatures should be drawing. If she does, it will be out of a sensitivity to politics — an awareness of the vulnerability of courts and a preference for the resolution of difficult social issues through the processes of democracy. But the case law is there, the path is open, and on that path, as Justice Scalia complained, the right to same-sex marriage is quite apparent.

I seem to recall an amendment that left that sort of thing up to the states, but what the Constitution and its amendments actually say has never troubled the National Socialists. It is, after all, a living document, according to all manner of virtuous people from Woody Wilson to Albert Gore, the Living Redwood.

Also, what Ann says about Willie's weaseling is, of course, why Shakespeare wanted to first kill the lawyers. He was asked a simple, true-false question, but he tried to find a loophole, by trying to make a sophisitc point. Ironically, he ended up only looking even more guilty.

My Con Law professor would hold it as a strike against you if you attempted tenth amendment analysis. "It's but a truism" he repeatedly said. It might as well not even be there. That's the appropriate way to interpret that amendment if you're a fan of the antifederalist government we've had for quite a while. Even though that obviously is contrary to legal interpretation doctrine, that's what's going on in many heads.

But THANK GOODNESS for Kagan's skill. I have never read a judicial decision of hers that isn't absolutely fantastic. She truly is unparalleled on the court in her experience with writing rulings, analyzing the law, and simply doing this job well. After all, this is a lifetime appointment, so it's good to know she has skills we can place literally incredible faith in.

I believe that what happens is that eventually you are crushed under the the burden of the intractable results of your own bad decisions, which bad decisions God was lovingly trying to help you see and avoid.

I haven't read the case Scalia dissented from, and only have the outlines of recollection of my Con Law classes, but I think it's entirely consistent with case law and Kagan's now-expressed opinion that the Supreme Court COULD recognize the penumbral right to privacy that allows the Constitution to prohibit criminalizing homosexual acts, while also limiting that right to allow the states to forbid same-sex marriage: The states have traditionally been allowed to regulate marriages (both as to timing and as to who-may-marry), and that makes sense because marriage affects many rights that simply private-among-adults behavior does not directly trigger.

In Wisconsin, at least, marriage can affect inheritance and access to credit, among two important rights. Simply having consensual sex with another person does not in any sense create "marital property" that can be reached by a creditor to satisfy a debt. Marriage does.

So the Supreme Court could well find, as their rulings lead to, that the private expression of private behavior is protected, while the public expression of private behavior may be regulated by the states.

On the other hand, I don't see a reason for a ban on gay marriage -- so hopefully legislatures will start to offer that benefit to every consenting adult.

The "path" was created by the 2003 Supreme Court ruling in Lawrence v Texas, which explicitly overruled a relatively recent (1986) case, Bowers v Hardwick, and held that intimate consensual sexual conduct was protected under the Fourteenth Amendment. Those cases involved criminal statutes against sodomy, but Scalia said at the time that it cleared the way for same sex marriage to be similarly protected.

Scalia's point is brilliant: the People is not rationalist. The People knows some things that brainiacs never glom on to. Like for example that the defense of normality supersedes the "rights" of inverts.

"Like for example that the defense of normality supersedes the "rights" of inverts. "

Seems like you "normals" did most of the work fucking up "normality". We "inverts" just want you weirdos, including the federal government, to leave us the fuck alone.

As I've stated here many times, the only rational thing is for the government to get its nose out of marriage of any kind. Marriage is a religious-romantic institution and therefore not subject to any regulation by the government whatsoever.

Marriage, of any sort, is not mentioned in the US Constitution and shouldn't be.

Most inverts want a full court press by gummint. And they expect to be loved by the People, as well. Correction, they demand to be loved. Good luck with that. But keep pushing, IUSH (Inverts United to Save Humanity).

If SCOTUS wanted to be consistent (though "a foolish adherence to consistency is the hallmark of little minds," and we certainly don't want our Justices to be small-minded), they would determine that marriage is a religious rite, in whatever religion, and the State(s) should get out of the business altogether and leave it to the churches (or temples or whatever). "Civil unions" would be established for tax purposes and other state functions, and would be effected by the parties filing a certified document with the county clerk's office, including a statement that they fully understood the ramifications of their action, including the consequences of a subsequent divorce.

Good job Quayle..good job bro. Some people are too stupid to realize that the way to keep up the human race is thru opposite-sex marriage. God knew what He was doing..and He certainly knows better than these haters who don't have streets of gold in their neighborhood...just mad 'cuz they can't live forever and be God.

... and when I said is not the biggest fairy tale, I meant, if is not means is not but might become, that is --that is one thing.

If it means there is not anything genuine about this guy and never will be, none... then that was a completely true statement....

Now, if someone had asked me on that day, will you ever be having any kind of fairy tale relations with Senator Obama, that is, asked me a question in the future tense, I still would have said no. And it would have been completely true.

…Subsequent laws and court decisions have made clear that equality under the law extends to persons of all races, religions, and places of origin. What better way to make this national aspiration complete than to apply the same protection to men and women who differ from others only on the basis of their sexual orientation? I cannot think of a single reason—and have not heard one since I undertook this venture—for continued discrimination against decent, hardworking members of our society on that basis.Various federal and state laws have accorded certain rights and privileges to gay and lesbian couples, but these protections vary dramatically at the state level, and nearly universally deny true equality to gays and lesbians who wish to marry. The very idea of marriage is basic to recognition as equals in our society; any status short of that is inferior, unjust, and unconstitutional.

The United States Supreme Court has repeatedly held that marriage is one of the most fundamental rights that we have as Americans under our Constitution. It is an expression of our desire to create a social partnership, to live and share life's joys and burdens with the person we love, and to form a lasting bond and a social identity. The Supreme Court has said that marriage is a part of the Constitution's protections of liberty, privacy, freedom of association, and spiritual identification. In short, the right to marry helps us to define ourselves and our place in a community. Without it, there can be no true equality under the law….

…The explanation mentioned most often is tradition. But simply because something has always been done a certain way does not mean that it must always remain that way. Otherwise we would still have segregated schools and debtors' prisons. Gays and lesbians have always been among us, forming a part of our society, and they have lived as couples in our neighborhoods and communities. For a long time, they have experienced discrimination and even persecution; but we, as a society, are starting to become more tolerant, accepting, and understanding. California and many other states have allowed gays and lesbians to form domestic partnerships (or civil unions) with most of the rights of married heterosexuals. Thus, gay and lesbian individuals are now permitted to live together in state-sanctioned relationships. It therefore seems anomalous to cite "tradition" as a justification for withholding the status of marriage and thus to continue to label those relationships as less worthy, less sanctioned, or less legitimate….

….These decisions have generated controversy, of course, but they are decisions of the nation's highest court on which our clients are entitled to rely. If all citizens have a constitutional right to marry, if state laws that withdraw legal protections of gays and lesbians as a class are unconstitutional, and if private, intimate sexual conduct between persons of the same sex is protected by the Constitution, there is very little left on which opponents of same-sex marriage can rely. As Justice Antonin Scalia, who dissented in the Lawrence case, pointed out, "[W]hat [remaining] justification could there possibly be for denying the benefits of marriage to homosexual couples exercising '[t]he liberty protected by the Constitution'?" He is right, of course. One might agree or not with these decisions, but even Justice Scalia has acknowledged that they lead in only one direction….

…So there are now three classes of Californians: heterosexual couples who can get married, divorced, and remarried, if they wish; same-sex couples who cannot get married but can live together in domestic partnerships; and same-sex couples who are now married but who, if they divorce, cannot remarry. This is an irrational system, it is discriminatory, and it cannot stand….

Why can't the Federal Government just butt the Hell out of our lives and take care of its responsibilities which are to provide a military, keep our borders secure from foreign invasion and provide for the larger infrastructure items that local government can't (damns, interstate transportation etc.) Other than that they should mind their own business and let the people control the rest: that includes marriage, religion and abortion

The "path" was created by the 2003 Supreme Court ruling in Lawrence v Texas...

I see. In that case, what's the court precedence on multiple marriage? Taking Scalia's argument a step further down the slope, if the court were to find a privacy right to same-gender marriage, would that not suggest a privacy right to multiple partner marriage?

Also, I'm not sure why a privacy right to sex would necessarily translate to a privacy right to marriage. Haven't we established that the two concepts are distinct?

No they aren't. States are not allowed to pass laws that violate equal protection. Give it another 10 years and gay marriage will be legal in all 50 states. The days of you troglodytes denying people their basic human rights are OVER!

Lance said: Also, I'm not sure why a privacy right to sex would necessarily translate to a privacy right to marriage. Haven't we established that the two concepts are distinct?

I would argue that the distinction is that marriage is, by it's nature, a public act. It is more than just a religious and personal commitment, but an act that involves willfully putting oneself within a certain legal framework that declares certain rights and obligations. Therefore, it should not fall under the rubric of the "right to privacy" (on the assumption, of course, that one exists).

I would argue that the distinction is that marriage is, by it's nature, a public act.

Yes, I agree. As I understand the legal/policy argument, same gender marriage isn't specifically about the contractual relationship, but rather about the entailed rights: child custody, visitation, etc. These are all very public rights. In fact, same gender marriage isn't so much about "leave me alone" as "I'm legally married so now you have to give me all those rights you've been denying me." That doesn't strike me as a privacy issue at all, but rather a discrimination issue.

I am very pleased about the nomination of Kagan. Give me a moment, let me explain why.

First, she couldn't possibly be worse than Stevens. in fact we might hope a little rightward movement on a few issues.

second, she stinks as an advocate. For instance, in Citizen's united she took the radical position that corporations had no free speech rights at all. a smarter advocate would have taken a more moderate position. She lost kennedy the moment she said that this mean even a book could be banned. she's terrible. And thus she will be a positive liability to any cause she gets behind in the conference room.

She will be a vote, but she will not move the court. by comparison, thomas moves the court. he says something in one case and 5-10 years later, it becomes the rule. not all the time, but he is demonstrably capable of moving his colleagues to his position.

btw, are we certain about the lesbian thing?

that being said, first, I am sure that Stevens was going to vote for gay marraige eventually, so if she does, nothing will have changed. And certainly she has alot of room to weasel out of what she said before congress--such as saying she merely meant there was no court case saying that there was a right. remember to liberals there is no constitution, just what the courts say about it.

but that all being said, even if she is biased in favor of it, that might backfire. it is regularly noted that in judicial bias cases, that both sides have a right to complain. For instance, imagine if we find out that the judge is best friends with the plaintiff in a given case. so the defendant has cause to complain, to say, "you're just going to favor your friend." But so does the plaintiff, because he can say, "there is a danger that you might be unfairly hard on me, to prove you are not biased in my favor." Same thing, here. if Kagan is gay, then she might feel that if she is the 5th vote for gay marriage everyone will assume she was biased and it would deligitimize the ruling. Indeed, if she was gay, she might actually go the other way and refuse to strike down gay marriage.

Why can't the Federal Government just butt the Hell out of our lives and take care of its responsibilities which are to provide a military, keep our borders secure from foreign invasion and provide for the larger infrastructure items that local government can't (damns, interstate transportation etc.)

I believe that's dams, but your interpretation works, as well :)

Alex said...

No, so the states are free to set their own law, as they have.

No they aren't. States are not allowed to pass laws that violate equal protection. Give it another 10 years and gay marriage will be legal in all 50 states. The days of you troglodytes denying people their basic human rights are OVER!

Thar she blows!!! The Moby has surfaced.

Marriage is a right for no one, and, in the 5000 years or so of recorded history, especially not for homosexuals. This is another invention of the Left to pander for votes, nothing more.

What may institute it until the country forces the Court to reverse itself is the obscene cherry-picking of clauses and phrases from the Constitution by which the appellate courts have arrogated to themselves what amendments they will enforce and in what manner. This is another arena where the Tea Partiers will make themselves heard.

"Marriage is a religious-romantic institution and therefore not subject to any regulation by the government whatsoever."

As much as I sympathize with Palladian's resentment of governmental meddling in private life, marriage has been a legal institution (i.e., a creature of the legal system for as long as there have been legal systems. Marriage has often been a religious institution as well, but that only means that (1) for much of Western history marriage fell within the jurisdiction of ecclesiastical not civil courts, and (2) even when marriage is a matter for the secular legal system, the state's authority to authorize and create marriages is often delegated to eccliastical officials.

Marriage is a crucial social institution in so many ways that it is silly to argue that it should not be regulated by the government.

> The path to finding a constitutional right to same-sex marriage is a very easy one at this point in the development of the case law. It is mainly a prudential, political attitude that will keep the Court from finding it now.

Well, either that or they realize how silly it is to pretend that the founders intended any such thing. The 14th amendment was written by evangelical Christians. They were not the libertarians modern liberals want them to be, when it comes to sexual matters.

As for prudential matters, yeah, there is the little problem of the precedent they would be setting. If the court decides that mere moral disapproval is not enough to justify the ban, then on what groups precisely would you rule against gay incestuous marriage. Think about it. say that Sam and Chris want to get married. They say, “is it okay that we are siblings?”

“No, of course not. You’ll have mutant children.”

“No we won’t. We are both brothers, Samuel and Christopher.”

So what do you say then? How do you make gay marriage legal without letting two brothers marry?

Indeed, many state laws ban incestuous marriage far beyond what is necessary to protect us from “mutant babies”—to use a flippant term. In most states people related by adoption, or by marriage (step brothers and step sisters, for instance) cannot marry. If you don’t share the same blood, why would there be a problem? Because its not about “mutant babies” but about moral disapproval. It is f—ed up for Greg Brady to marry Marsha Brady. But if moral disapproval is not enough to prevent gay marriage, why should it work here?

Which is not to say that the supreme court will legalize incest. It won’t. But the hypocrisy involved will damage the court.

Mind you, if it was legalized by legislation that would be a different matter. The legislature is allowed to get away with inconsistencies that the courts are not. They can say, “gay marriage is allowed, but incest—even gay incest—is still illegal.” But when we talk about the courts, they are supposed to be applying principles neutrally, not just their whims at the moment.

In Bush v. Gore, we discovered that we need a supreme court we can trust to be a neutral arbiter. We needed a referee. And 50 years of judicial activism added up to no one believing we had that any more. A pro-gay marriage decision will only accelerate that decline.

But I still hold by my previous comment. If Kagan is gay, she will never be the 5th vote to legalize gay marriage.

"Marriage is a crucial social institution in so many ways that it is silly to argue that it should not be regulated by the government."

If marriage were a "crucial social institution" then divorce would not be so easily obtained.

Slavery had a long history in the Western world. Subjugation of women has a history stretching to the beginning of civilization. That some idea has a history does not validate it.

Why should the State attempt to shore up supposedly "crucial social institutions" anyway? Where in the Constitution is the Federal government given the task of supporting "crucial social institutions"? The State has the power to enforce contracts. Why not let marriage be a neutral contract between parties, if you must have State involvement in marriage?

If that's not enough for you, and you want the State to be the prime agent of social organization, down to dictating which sorts of relationships are within its licensing interest, then a hell of a lot of things are going to have to change in our society. You should be happy about ObamaCare. Another "crucial social institution" fallen under the control of the all-powerful and beneficent State.

Slow Joe: "Only a fucking lawyer could take Jeffersonian 'anti-federalism' and label it "federalism" and vice versa.""

You desperately need to read this, from the Constitutional Convention:

MR. GERRY did not like the term National .... It brought to his mind some observations that had taken place in the Conventions at the time they were considering the present constitution. It had been insisted upon by those who were called anti-federalists, that this form of government consolidated the union; .... Those who were called anti-federalists at that time, complained that they were in favor of a federal government, and the others were in favor of a National one; the federalists were for ratifying the constitution as it stood, and the others did not until amendments were made [the Bill of Rights]. Their names then ought not to have been distinguished by federalists and anti-federalists, but rats and anti-rats.

MadisonMan said... "Quayle, then my question is: Why should the Federal Government care?"

Federal constitutional law imposes some standards on how the state may do the things they choose to do. If the state choses to, say, run a museum, it can't, say, only let white people in. If a state makes littering a crime, it can't impose the punishment of torture. There are infinite examples like that. So if the state maintains the institution of marriage, the question is when does it violate rights? It has been held to violate federal rights to forbid interracial marriage. That the state could just not make marriage a part of its law doesn't matter.

"Why not let marriage be a neutral contract between parties, if you must have State involvement in marriage?"

Because children are born and economic choices of great significance are made relying on the promise of a union. And ordinary people don't have the ability or the money to structure all their relationships as contracts. People are emotional and romantic and insufficiently rich to go to lawyers for all the help they need in their relationships. It's an attempt to protect vulnerable people.

Why should the State attempt to shore up supposedly "crucial social institutions" anyway? Where in the Constitution is the Federal government given the task of supporting "crucial social institutions"?

Exactly. It really isn't in the area of government to support one social construct over another. Societal engineering and attempting to encourage or discourage 'behaviour' by government intervention and taxation is not a part of the Constitituion nor should it be a part of Government's concern.

The only behaviour that government should be concered about is criminal activity by one person or a goup of persons that is harmful to others.

The State has the power to enforce contracts. Why not let marriage be a neutral contract between parties, if you must have State involvement in marriage?

This leads us back to the Liberals main concept that people are too stupid to know what they want for themselves or too stupid to understand what is good for them......therefore the Government must interfere and control our lives....for our own good...ya know.

A rather big part of my financial planning practice is with unmarried couples, people on their 2nd and 3rd marriages with children from several marriages and gay couples who have substantial assets all of whom would like to leave their spouses secured in the event of death or protect themselves in the event of dissolution of the relationships.

Part of the problem with making gay marriage legal under our current system of tax laws and inheritance laws is that there can be no equality until the ENTIRE system of tax code is dismantled and changed.

Imagine, if you will, a delegate to the Convention standing up by his desk, looking Gen'l Washington straight in the eye, and proposing that the "right" to same sex marriage is guaranteed by the Articles as proposed.

Dust Bunny Queen said..."Why can't the Federal Government just butt the Hell out of our lives and take care of its responsibilities yada yada and provide for the larger infrastructure items that local government can't (damns....."

Well, when left to our own self regulation we often run amuck and the greater good is served when need be...take education for instance...spelling perhaps...dam(n)s...that sure is something isn't it.

"Imagine, if you will, a delegate to the Convention standing up by his desk, looking Gen'l Washington straight in the eye, and proposing that the "right" to same sex marriage is guaranteed by the Articles as proposed.

Man! That would take courage!"

Yes, the same kind of courage it would have taken to propose that black people, women and the poor were whole persons entitled to all the rights afforded white landowners.

"Part of the problem with making gay marriage legal under our current system of tax laws and inheritance laws is that there can be no equality until the ENTIRE system of tax code is dismantled and changed."

"Because children are born and economic choices of great significance are made relying on the promise of a union. And ordinary people don't have the ability or the money to structure all their relationships as contracts. People are emotional and romantic and insufficiently rich to go to lawyers for all the help they need in their relationships. It's an attempt to protect vulnerable people."

But State-sanctioned marriage as it currently stands is a contract, isn't it? Why not remove the sex-related qualifications on the contract? Why assume that the resulting "partnership" even has a romantic component? Is that currently required of a marriage? Marriages used to be regarded much more as contracts rather than romantic-spiritual bonds. Why not return to that?

But State-sanctioned marriage as it currently stands is a contract, isn't it? Why not remove the sex-related qualifications on the contract? Why assume that the resulting "partnership" even has a romantic component? Is that currently required of a marriage? Marriages used to be regarded much more as contracts rather than romantic-spiritual bonds. Why not return to that?

Because, didn't you read Althouse and HDhouse, we are like poor little children who need protection, who run amok (the preferred spelling). Who else to take care of us and wipe our noses: Big Government.

"'Marriage is a crucial social institution in so many ways that it is silly to argue that it should not be regulated by the government.'

That's begging the question."

There's no question-begging for the simple reason that only an argument can beg the question, and the quoted sentence is an assertion not an argument. It merely says there are unspecified features of marriage that make it necessary for the government to regulate it. That may be true or false, but it doesn't beg the question.

It's fair to ask just what it is about marriage that makes it necessary to regulate it. These features, once specified, can then be treated as premises from which the conclusion can be derived that marriage must be regulated. But until they are specified there are no premises and therefore no argument. Just an assertion or an expression of opinion

"Where in the Constitution is the Federal government given the task of supporting "crucial social institutions"?

I agree that the federal government should not have the authority to regulate marriage. But the states have that authority, and must exercise it.

"The State has the power to enforce contracts. Why not let marriage be a neutral contract between parties, if you must have State involvement in marriage?"

Marriage is a legal status, not a contract. I don't want to bore you with a discussion of the significance of that distinction, but I do think (I'm not begging the question here, Lance) that the failure to recognize it leads to a lot of half-baked arguments in favor of same-sex marriage based on a kind of mindless libertarianism.

Just imagine how freedom of contract could apply to marriage. John and Jane agree before they get married that they do not want children, and if either of them changes his or her mind during the marriage, that will be grounds for dissolution. Jane becomes pregnant by accident, and faced with the reality of a child living in her womb refuses to have an abortion. John decides that Jane has breached a fundamental premise of their marriage and divorces her. He also says that he shouldn't be responsible for supporting the child because he never agreed to have it. What is the court supposed to do: attempt to discern the contracting parties' intent? Why should that even matter?

"If that's not enough for you, and you want the State to be the prime agent of social organization, down to dictating which sorts of relationships are within its licensing interest, then a hell of a lot of things are going to have to change in our society. You should be happy about ObamaCare. Another "crucial social institution" fallen under the control of the all-powerful and beneficent State."

Get a grip, Palladian. Principles of freedom of contract are adequate to regulate health care. They are not adequate to regulate marriage.

Brian - the MSM did what was expected of it; it printed the story of the blogger's accusation that Kagan was gay, and the White House's subsequent denial that she was gay. The accusation was the signal to the gay/lesbian community that Obama was 'paying back' for their support of his candidacy, and the WH denial created plausible deniability for Obama against charges that he was engaging in identity politics by adding a 'gay' seat to SCOTUS. This method of putting Kagan's lifestyle preference 'out there' was also the MSM's clear warning to Republicans (and other critics) of the nomination that this area was off limits.

I think Ted could have thought up some arguments against government recognition of SSM. He's a lawyer isn't he? I can think up plenty of arguments for things I don't believe in.

He also (as all on that side do) deliberately confuses SSM and government recognition of SSM. The US does not recognize plural marriage but there's plenty of plural marriage in the world and the US. (And if you're Muslim rather than Mormon, you won't even be busted for plural marriage here.)

SSM has never been outlawed even by legal regimes that applied the death penalty to sodomy. Like Queen Victoria and lesbianism, our predecessors (including those who were gay) didn't even consider it.

Why is it that it is automatically assumed that a straight white guy isn't a homophobe, or a bigot, or an anti-Semite, but it IS assumed that a woman, a African American, or a gay, has to be biased? Apparently, only straight, white, Christian men can be objective.

To follow the argument to its logical conclusion, women can't hear cases about women, blacks can't hear cases about blacks, and Jews can't hear cases about religion. But straight white Christian men get a bye on any suspicion of bias, even though they too have a gender, a race, a religion, and an orientation. Go figure.

I am half of one of the 18,000 same sex couples married prior to PropH8 (and still joyfully married). However, since my marriage is not recognized federally, many of the legal benefits of marriage do not accrue to us (hence the Gill case from MA). So we still need all those very expensive legal contracts and trusts to try to protect each other and our home In Case SOmething Happens. Not as much as federally recognized marriage would protect us, however.

If the state wants to get out of the civil marriage business, great. But the state is giving significant benefits to married couples regardless of fecundity, and moreover many same sex couples are raising children (we have two) who are imperiled by the lack of legal status between their parents.

The solution is a European one. If the state wants to encourage stable families and relationships as a reasonable interest, it should provide civil unions to any couple. Make religious marriage a separate event and stop conflating the two. With that solution, the argument against (civil) marriage equality is harder to make.

But then, as we saw in Washington and Hawai'i in the protests about domestic partnerships, it's not and never has been about the word "marriage". It's about giving any rights to GLBT people at all.

A.W.: Upon what principle do you say it is unconstitutional to ban gay marraige, but constitutional to ban gay incestuous marriage?

I'm not sure how you can say it is unconstitutional to ban SSM, and what Kagen said it that is not unconstitutional to do so. Likewise, how is it constitutional to ban incestuous marriage, same-sex or opposite-sex? Has there ever been a federal challenge to laws prohibiting incestuous marriages? Maybe no one has answered your questions because you're making strawmen that knock themselves down.

The question is, would Kagen find the constitutional right to SSM? I think it is quite plausible she would find that it is unconstitutional for the feds to refuse to recognize the marriages of some couples that a state says are married. It's less likely that she would find that it is unconstitutional for any state to ban SSM. The relevant precedent there would be Loving, would it not? That decision had a century of social, scientific, and legal shifts in attitudes towards and definitions of race and of what it means to be human. With regard to human sexuality, we're at a point where gender and sexual orientations are becoming better understood, where social attitudes and localized, regionalized legal distinctions have shifted. We're far enough along for SCOTUS to conclude that the varied patchwork of sodomy statutes still on the books were arbitrary and had no rational basis, given how they were and were not applied. But we're a long way from drawing that conclusion about marriage. As long as the majority of states ban (or have no stance) on SSM, I don't think Kagen or SCOTUS would find that these bans are unconstitutional. Get back to me in 50 years, when SSM isn't explicitly prohibited in dozens of states. I suspect that by then, SCOTUS would take a view more in line with Lawrence.

What kind of wine has Mikey Weinstein been drinking? As an anti-Christian Jewish supremacist and as the president of the Military Religious Freedom Foundation, he's doing all he can to create an anti-Jewish backlash and help bring about the predicted endtime Holocaust of Jews that'll be worse than Hitler's. Neither Falwell, Hagee nor any other Christian initiated this prediction. But Weinstein's ancient Hebrew prophets did. In the 13th and 14th chapters of his Old Testament book, Zechariah predicted that after Israel's rebirth ALL nations will eventually be against Israel and that TWO-THIRDS of all Jews will be killed! Malachi revealed the reasons: "Judah hath dealt treacherously" and "the Lord will cut off the man that doeth this." Haven't evangelicals generally been the best friends of Israel and persons perceived to be Jewish? Then please explain the hate-filled back-stabbing by David Letterman (and Sandra Bernhard, Larry David, Kathy Griffin, Bill Maher, Sarah Silverman etc.) against followers of Jesus such as Sarah Palin and Michele Bachmann. Weinstein wouldn't dare assert that citizens on government property don't have freedom of speech or press freedom or freedom to assemble or to petition the government. But God-hater Weinstein maliciously wants to eliminate from government property the "free exercise" of religion - especially by evangelicals - a freedom found in the same First Amendment. Significantly, this freedom was purposely listed FIRST by America's founders! (Not-so-subtle Weinstein has even authored a book which has "One Man's War Against an Evangelical Coup" in its title!) And Weinstein wouldn't try to foist "separation of church and state" on strongly-Jewish Israel, but he does try to foist this non-Constitution-mentioned phrase on strongly-Christian America. In light of Weinstein's Jewish protectionism and violently anti-Christian obsession, Christians in these endtimes should be reminded of Jesus' warning in Mark 13:9 (see also Luke 21:12) that "in the synagogues ye shall be beaten." Maybe it's time for some modern Paul Reveres to saddle up and shout "The Yiddish are Coming!"

PS - Some, like Weinstein, are so treacherously anti-Christian they will even join hands at times with enemies, including Muslims, in order to silence evangelicals. It was Weinstein, BTW, who put pressure on the Pentagon to dis-invite Franklin Graham from speaking there on the National Day of Prayer! PPS - Weinstein is an echo of the anti-Christian, anti-American Hollywood which for a century has dangled every known vice before young people. We seriously wonder how soon the lethal worldwide "flood of filth" (global harming!) that Hollywood has created will engulf and destroy itself and help to bring to power the endtime Antichrist (a.k.a. the Man of Sin and the Wicked One)!